End of the road for Mau settlers as court upholds eviction ruling

Some of the houses demolished by Kenya Forest (KFS) Officers at Kapsinendet area in Marioshoni within the the Mau Forest Complex on July 11,2020 during an operation to flash out illegal settlers in the forest. [Kipsang Joseph, Standard]

It was the end of the road for over 1,000 people after a Nakuru court upheld a government decision to evict them from a section of the Mau Forest where they were residing.

The 1,193 people evicted from Sururu settlement scheme in Eastern Mau have been fighting for compensation since they were kicked out of the water tower in 2004.

"Our environment is everything and if we do not protect our beautiful environment, then we will end up destroying our lives," Environment and Lands Court Judge Anthony Ombwayo said on Tuesday while dismissing a petition by the 1,193 people.

"God placed mankind in a clean and healthy environment six million years ago. Early man did not interfere with his environment which was then known as the Garden of Eden. Later, the man started cutting down trees to access land for cultivation, settlement, timber, and firewood, and soon the world is headed to a concrete jungle," he added.

Justice Ombwayo said governments of the world are to blame for desertification as they authorise illegal acquisition of forest land.

"Soon, human beings will be struggling with a very unhealthy environment due to climate change caused by their negative activities towards the said environment," he said.

In the petition, Kiptarus arap Tabot and 1,192 others sued the government seeking compensation following their August 2004 eviction. Kalimbula Investments was named as an interested party in the case.

Through D.K. Mbugua, the then acting Chief Conservator of Forest, the Attorney General stated that in 1997, the government excised a part of the gazetted Mau Forest Reserve measuring 35,301 hectares for purposes of establishing settlement schemes to settle landless people.

The group said they were handed land bordering the eastern side of the Mau Forest complex named Sururu Settlement Scheme, and the government issued them with title deeds upon payment of the required fees.

The group claimed they took possession of the land and developed it. However, the same government violently evicted them in 2004.

The petitioners wanted the court to issue orders declaring that they are the registered owners of the parcels of land in Sururu Settlement Scheme. They also wanted a court declaration that the said land is no longer a forest.

In his responding affidavit, the AG said the excised area was divided into several settlement schemes namely Sururu, Likia, Teret, Nesuit, Sigotik, Ngongongeni, Kapsita and Baraget.

The AG contended that pursuant to the excision, the land designated for settlement was subsequently degazzeted in 2001 vide Legal Notice No. 142 of October 8, 2001.

The degazettment, he said, was the subject of Nairobi High Court Misc. Civil Application No.421 of 2002- Republic -vs- Minister for Environment & 5 others Ex parte Kenya Alliance or Resident Associations and 4 others that is pending hearing and determination.

However, on April 22, 2002, the court issued an order to stay the decision by the respondents of altering the boundaries, alienating, processing, and surveying the portions of land pursuant to Legal Notices Nos. 140-153 of 2001 and published on October 19, 2001.

The court heard that Eastern Mau Forest initially covered approximately 160,639 acres or 65,009 hectares. However, over the years, the acreage has been reduced as a result of the de-gazettement for the settlement of landless Kenyans by the government.

The AG said in December 2003, Enderit Forest, which neighbours Sururu Settlement Scheme, was unlawfully invaded by a group of people who apportioned themselves parcels of land. They cleared vegetation and erected structures for settlement, leading to destruction of the forest which is a vital water catchment area.

Bernard Simiyu Otubo, a land surveyor, testified that he was ordered by the court to do a survey and file a report which he did. In the report dated October 13, 2019, Wanyonyi confirmed that the settlement was in a forest area.

"I have considered the pleadings and the evidence on record, including the submissions, and do find that the parcels of land in dispute were created from L.R 2942, also known as Enderit Forest Block adjacent to L.R 24989, also known as Sururu Settlement Scheme," said the judge.

The court said the parcels of land allegedly belonging to the 1,193 people were found to be nowhere in the available Registry Index Map, but it was found that they fall in the gazetted Enderit Forest Reserve.

The judge noted that the 1,193 people were not allocated land under any of the provisions provided for the allocation of government forests for private purposes.

"The facts herein depict a case where people invade the gazetted forests with the assistance of the land registrar who issued them with land title deeds without following the laid down procedure and therefore a perpetuation of an illegality," Justice Ombwayo said.

He said the title deeds were issued illegally and unprocedurally as the land remains protected forest land.

Compensation

"I do find that the plaintiffs did not hold valid titles as the suit properties are still gazetted forest land. The titles were obtained unprocedurally," reads the judgment.

The judge said it is not disputed that the occupants were violently evicted from the land.

"Though they illegally settled on the forest land, they should have been accorded a humane eviction from the suit property. The plaintiff ought to have been given notice of eviction. The defendant did not produce any notice of eviction and hence ought to pay for the resultant damages," said the judge.

He said the evictees could have been entitled to compensation for general damages had they not destroyed the forest. He said they should restore the forest as it was before their invasion.

"The plaintiffs' thatched houses were destroyed, but the plaintiffs equally destroyed a natural resource, the forest, by cutting down trees," he said.

Justice Ombwayo noted that the cost of restoring the destroyed forest surpasses the cost incurred by the residents when their properties were destroyed. The judge declined to order for compensation.

"I do not intend to put the plaintiffs back in the forest hence I dismiss the prayers that the plaintiffs be placed back in forest land. I also dismiss the prayer for alternative land as the same has no basis," the judge said.

In October last year, a three-judge bench gave an almost similar verdict in a suit by over 500 evictees of Maasai Mau Section of the Forest.

Judges John Mutungi, George Ong'ondo, and Mohammed Kullow of the Lands and Environment Court sitting in Narok found that the occupation of the forest by individuals was illegal and was endangering the ecosystem.

The judgment was in relation to the subdivision of five group ranches namely Reiyo, Enakishomi, Sisiyian, Enoosokon, and Nkaroni.